Filed 10/29/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
JANE DOE et al., B313874
Petitioners, (Los Angeles County
Super. Ct. No. BC712514)
v.
THE SUPERIOR COURT OF
LOS ANGELES COUNTY,
Respondent;
MOUNTAIN VIEW SCHOOL
DISTRICT,
Real Party in Interest.
ORIGINAL PROCEEDINGS in mandate. Mary Ann
Murphy, Judge. Petition denied with instructions.
Carrillo Law Firm, Luis A. Carrillo, Michael S. Carrillo,
Laura M. Jimenez; The Senators (Ret.) Firm, Ronald T. Labriola;
Esner, Chang & Boyer, Stuart B. Esner, and Holly N. Boyer for
Petitioners.
No appearance for Respondent.
Lewis Brisbois Bisgaard & Smith, Jeffry A. Miller, Lann G.
McIntyre, Dana Alden Fox, Gregory M. Ryan, Edward E. Ward
Jr., and Wendy S. Dowse for Real Party in Interest.
* * *
A young woman sued a school district for negligently
supervising the fourth-grade teacher who molested her in 2010
and 2011. Prior to trial, the district sought to introduce evidence
that the woman had been sexually abused by someone else in
2013. The trial court admitted the evidence in part, reasoning
that (1) the evidence fell outside of the scope of Evidence Code
sections 1106 and 783 1 because those statutes regulate the
admission of “the plaintiff’s sexual conduct,” which the court
ruled did not include being involuntarily subjected to sexual
abuse, and (2) admitting the evidence was proper, ostensibly to
impeach the plaintiff, under section 352 because its probative
value to contradict her anticipated testimony attributing all of
her emotional distress to the teacher’s molestation was not
substantially outweighed by the danger of undue prejudice. To
resolve the woman’s petition for writ of mandate challenging this
ruling, we must confront the question: Does the term “plaintiff’s
1 All further statutory references are to the Evidence Code
unless otherwise indicated.
2
sexual conduct” in sections 1106 and 783 (as well as Code of Civil
Procedure section 2017.220) encompass sexual abuse to which a
plaintiff has been involuntary subjected as well as the plaintiff’s
voluntary sexual conduct? We conclude that the answer is yes.
Because section 783 requires a trial court, after following certain
procedures, to engage in a section 352 analysis identical to the
one the trial court undertook, we must also confront the question:
Did the trial court abuse its discretion in finding that the
probative value of the subsequent sexual abuse was not
outweighed by the danger of undue prejudice? We conclude that
the answer is no. Accordingly, we deny the writ petition and
dissolve the stay of the trial proceedings, but instruct the trial
court to either assess any prejudice flowing from the empaneled
jury’s exposure to the mentioning of the 2013 incident during
opening statements, or begin the trial with a new jury.
FACTS AND PROCEDURAL BACKGROUND
I. Plaintiff’s Complaint
S.D. (plaintiff) is one of several plaintiffs suing the
Mountain View School District (the District). While plaintiff was
a fourth-grade student at one of the District’s elementary schools
during the 2010-2011 school year, her teacher—Joseph
Baldenebro—molested her. Plaintiff is suing the District for (1)
negligence due to its (a) negligent hiring and retention of
Baldenebro, (b) negligent supervision of him, (c) negligent failure
to warn, train, and educate against his abuse, and (d) negligence
per se in not reporting his abuse, and (2) sexual harassment (Civ.
Code, § 51.9). 2 Among other things, plaintiff is seeking
2 Other student-plaintiffs’ parents sued the District for
negligent infliction of emotional distress in the same complaint.
3
compensation for the “physical, mental, and emotional damages
and injuries resulting from the sexual harassment.”
II. Discovery
In response to discovery propounded by the District, the
District learned that plaintiff had been “sexually molested” by a
“teenage family friend” in 2013. The molestation inflicted
“emotional and psychological trauma” upon plaintiff for the next
several years, severe enough that she sought out “medical” and
psychological treatment in 2016.
III. Pretrial Rulings on Admissibility of 2013 Molestation
In May 2021, plaintiff filed a motion in limine to exclude
evidence of her “sexual history with persons other than”
Baldenebro; her motion cited sections 1106 and 352.
At a pretrial hearing on July 19, 2021, the trial court
shared its preliminary view that section 1106 may not bar
admission of the 2013 molestation because section 1106
“[t]ypically . . . relates to voluntary sexual activity.” The court
nevertheless invited the District to submit a motion seeking to
admit the evidence for impeachment purposes under section 783. 3
On the same day as the hearing, the District filed its 783
motion. Although the motion indicated that the District sought
to admit evidence of the 2013 molestation “to establish an
alternative explanation for [plaintiff’s] psychological harm and
condition” rather than to “‘attack [plaintiff’s] credibility,’” the
District nevertheless moved to admit evidence of the 2013
3 Although the trial court cited section 782, that section—as
the District pointed out repeatedly in its filings with the trial
court—is similar in effect to section 783 but applies only in
criminal prosecutions (§ 782, subd. (c)); section 783 is the section
applicable to “civil action[s] alleging conduct which constitutes
sexual harassment, sexual assault, or sexual battery” (§ 783).
4
molestation under section 783—and hence for impeachment
purposes—“out of an abundance of caution.”
After additional briefing, the trial court held a further
hearing during jury selection and before opening statements.
The trial court ruled that the admissibility of evidence regarding
the 2013 molestation was not governed by either section 1106 (as
urged by plaintiff in her motion in limine) or section 783 (as
suggested by the court). In so ruling, the court reasoned that
those sections govern the admissibility of a victim’s “sexual
conduct,” that “sexual conduct” must reflect voluntary sexual
conduct or a “willingness to engage in sexual conduct,” and that
the 2013 molestation was necessarily “involuntary” because
plaintiff was “a victim of inappropriate sexual behavior.” Finding
no need to apply the special analysis set forth in sections 1106 or
783, the court proceeded to analyze the admissibility of the 2013
molestation under the general rules governing relevance,
including section 352. In this regard, the court found the 2013
molestation to be “highly and directly relevant” to whether
plaintiff’s emotional distress was caused solely by Baldenebro’s
conduct (for which the District was to be held responsible) or
caused by a combination of his conduct and the 2013 molestation
because both the 2010-2011 molestation and the 2013
molestation involved the “[s]ame conduct” and the “[s]ame injury”
and because the 2013 molestation “undoubtedly added to
[plaintiff’s] damages.” The court found that this significant
probative value was “not substantially outweighed by the
probability that its admission will necessitate undue
consumption of time, create[] substantial danger of undue
prejudice, confuse the issues, or mislead the jury” because the
District planned to elicit the 2013 molestation through
5
“minimally invasive” questioning of plaintiff and the opinion of
an expert witness as to its impact.
IV. Writ Proceedings
On July 29, 2021, the day after the ruling, plaintiff
petitioned this court for a writ of mandate ordering the trial court
to exclude evidence of the 2013 molestation and requested a stay
of the trial proceedings pending our review of the trial court’s
evidentiary ruling. We granted a stay, but ultimately denied the
writ (and dissolved the stay) on July 30, 2021.
The next court day, the parties made opening statements to
the jury. After the court ruled that the District could mention the
2013 molestation in its opening statement, plaintiff mentioned
the molestation in her opening statement. In its opening
statement, the District stated that plaintiff’s mental distress was
“caused” “both” “by the . . . 2013 sexual abuse incident and by
Baldenebro.”
Plaintiff petitioned the California Supreme Court to review
our denial of her writ and to stay the trial court proceedings.
The Supreme Court issued a stay of proceedings on August 3,
2021, and then on August 9, 2021, granted the petition for review
and remanded the matter to this court to issue an order to show
cause. We did so, continued the stay of trial proceedings issued
by the Supreme Court, and obtained further briefing and
argument, and now issue this opinion.
DISCUSSION
In her writ petition, plaintiff challenges the trial court’s
pretrial evidentiary ruling allowing the District to introduce
evidence of the 2013 molestation. This challenge presents two
questions on the merits: (1) Did the trial court err in ruling that
section 1106 and section 783 do not apply to sexual conduct that
6
is involuntary, and (2) Did the trial court abuse its discretion in
concluding that the probative value of this evidence was not
substantially outweighed by the dangers of unfair prejudice? It
also presents a question of remedy.
As a threshold matter, however, we address the parties’
competing claims of waiver.
The District has argued that plaintiff has waived any right
to press her challenge to admitting the 2013 molestation because
plaintiff mentioned it during her opening statement to the jury
after we ruled but before the Supreme Court intervened.
Because the plaintiff’s decision to do so was a tactically
reasonable response to try to make the best of the trial court’s
adverse ruling by “fronting” evidence that would be devastating if
it first came from the opposing side, there was no waiver. (Mary
M. v. City of Los Angeles (1991) 54 Cal.3d 202, 212-213 [“‘“An
attorney who submits to the authority of an erroneous, adverse
ruling after making appropriate objections or motions, does not
waive the error in the ruling by proceeding in accordance
therewith and endeavoring to make the best of a bad situation for
which [s]he was not responsible”’”].)
Conversely, plaintiff argues that the District has waived
the right to argue that the 2013 molestation is admissible under
section 783 to impeach plaintiff because the District repeatedly
disavowed to the trial court any intention to use the evidence for
impeachment. Although the District’s focus was certainly on
admitting the 2013 molestation as substantive evidence under
section 1106, and although the District repeatedly (and
accurately) noted that section 782 was inapplicable, the District
also argued that it was seeking to admit the evidence for
impeachment purposes in an “abundance of caution.” Further,
7
our task is to review the propriety of the trial court’s ruling and
not its rationale. (E.g., People v. Zapien (1993) 4 Cal.4th 929, 976
(Zapien).) The scope of that ruling is admittedly ambiguous. On
the one hand, the trial court ruled that the 2013 molestation fell
outside the scope of section 782 (and, ostensibly section 783), and
then analyzed its admissibility under section 352. On the other
hand, the court made its ruling after invoking the statutes
applicable only when admitting evidence for impeachment
purposes, conducted a hearing as statutorily required, applied
the same section 352 analysis called for by those statutes,
engaged in a section 352 analysis that looked to the factors
pertinent to impeachment (namely, how the 2013 molestation
would impeach plaintiff’s evidence regarding the cause of her
emotional distress damages), and never expressly indicated that
the 2013 molestation was admitted “for all purposes.” Because
an ambiguous or uncertain order should be construed in favor of
its validity if possible (Winograd v. American Broadcasting Co.
(1998) 68 Cal.App.4th 624, 631; California School Employees
Assn. v. King City Union Elementary School Dist. (1981) 116
Cal.App.3d 695, 702; Richter v. Walker (1951) 36 Cal.2d 634,
639), we construe the trial court’s order to be limited to admitting
the 2013 molestation for impeachment purposes only. 4 At oral
argument, plaintiff urged that the public policy underlying
section 1106 requires us to construe the ambiguous order
regarding admissibility under section 783 to be invalid, but we
disagree that a statement of legislative purpose regarding specific
4 Accordingly, we reject as inaccurate the District’s
representation that “[t]he hearing required by” “section 783” “was
not conducted,” and decline its consequent request to remand for
“section 783 proceedings regarding this evidence.”
8
statutes alters a general principle of appellate review. The
District remains free to disavow that limited purpose of
impeachment on remand (and thus not to seek to admit the
evidence at all), but what it chooses to do next does not affect our
analysis now.
I. The Merits
A. Section 1106
In this writ proceeding, and consistent with one possible
reading of the trial court’s ambiguous order (albeit, not the one
we elect to credit), the parties debate whether the 2013
molestation is admissible under section 1106 for all purposes, not
just impeachment. This turns on a question of statutory
interpretation, which we independently examine. (Kirby v.
Immoos Fire Protection, Inc. (2012) 53 Cal.4th 1244, 1250.)
In pertinent part, section 1106 provides that:
“[i]n any civil action alleging conduct which
constitutes sexual harassment, sexual assault, or
sexual battery, opinion evidence, reputation evidence,
and evidence of specific instances of the plaintiff’s
sexual conduct, or any of that evidence, is not
admissible by the defendant in order to prove consent
by the plaintiff or the absence of injury to the
plaintiff, unless the injury alleged by the plaintiff is
in the nature of loss of consortium.”
(§ 1106, subd. (a), italics added.) Section 1106 does not apply (1)
“to evidence of the plaintiff’s sexual conduct with the alleged
perpetrator” except in civil actions under Civil Code section
1708.5 (id., subds. (b) & (c)), or (2) to “evidence offered to attack
the credibility of the plaintiff” under section 783 (id., subd. (e)).
9
Here, the 2013 molestation would be admitted as
substantive evidence to show “the absence of injury” stemming
from Baldenebro’s earlier molestation. Thus, the applicability of
section 1106 to exclude evidence of the 2013 molestation turns on
whether the 2013 molestation qualifies as “plaintiff’s sexual
conduct.” Stated more broadly, we must decide whether a
“plaintiff’s sexual conduct” within the meaning of section 1106
includes sexual conduct that was inflicted upon the plaintiff
involuntarily—that is, does it apply to sexual abuse? We hold
that it does, and do so for three reasons.
First, interpreting “plaintiff’s sexual conduct” to include
both voluntary sexual conduct and involuntary sexual conduct is
most consonant with legislative intent. “[T]he objective of
statutory interpretation is to ascertain and effectuate legislative
intent.” (Hughes v. Board of Architectural Examiners (1998) 17
Cal.4th 763, 775.) Although our Legislature did not define the
term “plaintiff’s sexual conduct” for purposes of section 1106,
section 1106 has two discernable objectives: (1) to exclude
evidence of a civil plaintiff’s character trait for promiscuity
(because section 1106 is part of the broader cluster of rules (§§
1101-1106) aimed at excluding evidence of one’s character to
prove conduct on a particular occasion (Curle v. Superior Court
(2001) 24 Cal.4th 1057, 1063 [“we consider portions of a statute
in the context of the entire . . . statutory scheme of which it is a
part”])), and (2) to encourage civil complainants to bring lawsuits
without fear of having the “sexual aspects of [their lives]”
scrutinized (Stats. 1985, ch. 1328, § 1; Vinson v. Superior Court
(1987) 43 Cal.3d 833, 841 (Vinson); People v. Fontana (2010) 49
Cal.4th 351, 362 (Fontana); In re Venus B. (1990) 222 Cal.App.3d
931, 936-937). The second objective has footing in the
10
“‘inalienable right’” to privacy enshrined in the California
Constitution. (Vinson, at p. 841 [so noting]; see generally, Cal.
Const., art. I, § 1.) If the first objective were the sole objective of
section 1106, it might make sense to construe “plaintiff’s sexual
conduct” only to reach voluntary sexual conduct—as well as other
voluntary sexual conduct indicating a willingness to have sex—
because only voluntary behavior says something about a person’s
character. (Accord, Rieger v. Arnold (2002) 104 Cal.App.4th 451,
461-462 [“sexual conduct” includes “conduct that reflects a
willingness to engage in sexual activity”]; Meeks v. AutoZone, Inc.
(2018) 24 Cal.App.5th 855, 874; People v. Franklin (1994) 25
Cal.App.4th 328, 334; People v. Casas (1986) 181 Cal.App.3d 889,
895.) But the second, privacy-focused objective applies with
equal force to sexual conduct whether it is voluntarily
undertaken or involuntarily inflicted. Although involuntarily
inflicted abuse says nothing about the victim’s character or traits
thereof, revealing the details of one’s prior sexual victimization
still invades one’s privacy.
Second, interpreting “plaintiff’s sexual conduct” not to
embrace involuntary sexual conduct would lead to absurd results,
which we generally try to avoid when interpreting statutes.
(People v. Bullard (2020) 9 Cal.5th 94, 106 [courts must “choose a
reasonable interpretation that avoids absurd consequences that
could not have possibly been intended”].) Because persons under
the age of 14 are, in the eyes of the law, incapable of voluntarily
consenting to sexual conduct (e.g., People v. Soto (2011) 51
Cal.4th 229, 247), excluding involuntary conduct from the ambit
of section 1106 would allow for the admission of evidence of all
sexual conduct of a person under the age of 14 (subject to the
other rules of evidence, of course). Given the prevalence of sexual
11
abuse of children, excluding younger minors from the ambit of
section 1106 would appear to be an absurd result we cannot
sanction. (See, e.g., Westley v. State (2021) 251 Md.App. 365, 394,
fn. 9 [making this point].)
Third, interpreting “plaintiff’s sexual conduct” to exclude
involuntary sexual conduct would also be against the weight of
precedent both here in California and in our sister states. A
handful of 31 year-old cases in California have interpreted the
term “sexual conduct” to reach involuntary sexual conduct
inflicted upon a victim. (Knoettgen v. Superior Court (1990) 224
Cal.App.3d 11, 14-15 (Knoettgen) [so holding, as to discovery of a
victim’s “sexual conduct”]; People v. Daggett (1990) 225
Cal.App.3d 751, 754, 757 [so holding, as to section 782].) And the
weight of out-of-state courts have construed their states’
statutes—which are similarly worded to section 1106—to reach
involuntary sexual conduct. (See People v. Parks (2009) 483
Mich. 1040, 1046-1047 & fn. 23 (conc. opn. of Young, J.) [citing
cases from 20 states].)
To be sure, this interpretation of section 1106 is not
without consequence.
Unlike its counterpart in the Federal Rules of Evidence,
section 1106 erects “an ‘absolute bar’ to the admission of evidence
of ‘specific instances of plaintiff’s sexual conduct.’” (§ 1106, subd.
(a) [declaring such evidence “not admissible”]; Patricia C. v. Mark
D. (1993) 12 Cal.App.4th 1211, 1216; cf. Fed. Rules Evid., rule
412(b)(2) [evidence of a “victim[’s] . . . other sexual behavior”
admissible in civil cases “if its probative value substantially
outweighs the danger of harm to any victim and of unfair
prejudice to any party”].) Consequently, a person accused in a
civil case of inflicting physical or psychological trauma upon the
12
plaintiff will be barred from adducing any evidence that the
plaintiff’s trauma was caused in part by sexual abuse inflicted by
someone else and may therefore end up compensating the
plaintiff for injuries inflicted by someone else. (Compare Civ.
Code, § 1431.2 [joint tortfeasors are not to be held jointly and
severally liable for noneconomic damages].) Absent section 1106,
such outcomes would be less likely because courts would be called
upon to balance the “right of civil litigants to discover [and
introduce] relevant facts [bearing on causation] against the
privacy interests of persons subject to discovery,” bearing in mind
that “plaintiff[s] cannot be allowed to make [their] very serious
allegations without affording defendants an opportunity to put
their truth to the test.” (Vinson, supra, 43 Cal.3d at pp. 841-842.)
But section 1106 does that balancing in advance, and has
categorically struck that balance in favor of exclusion. (Stats.
1985, ch. 1328, § 1 [“The Legislature concludes that the use of
evidence of a complainant’s sexual behavior is more often
harassing and intimidating than genuinely probative, and the
potential for prejudice outweighs whatever probative value that
evidence may have”].)
To be sure, section 1106’s categorical bar is to some extent
softened, if not potentially undermined, by two other statutes
enacted in the same bill—namely, what is now Code of Civil
Procedure section 2017.220 5 and section 783. (Stats. 1985, ch.
1328, §§ 2, 3.) Code of Civil Procedure section 2017.220
authorizes trial courts to permit “discovery concerning the
plaintiff’s sexual conduct” upon a “showing” of “good cause” based
5 This section is derived from Code of Civil Procedure section
2036.1. (See Knoettgen, supra, 224 Cal.App.3d at p. 12; Vinson,
supra, 43 Cal.3d at p. 843.)
13
on “specific facts.” (Code Civ. Proc., § 2017.220, subd. (a).) And
section 783, as discussed more fully below, authorizes trial courts
in “civil action[s] alleging conduct which constitutes sexual
harassment, sexual assault, or sexual battery” to admit “evidence
of sexual conduct of the plaintiff” to “attack credibility” if they (1)
conduct a hearing out of the jury’s presence based on a written
motion and affidavit with an offer of proof, (§ 783, subds. (a)-(c)),
and (2) conclude that the evidence is “relevant” to impeachment
and “not inadmissible pursuant to [s]ection 352” (id., subd. (d)).
Unlike section 1106, these statutes allow for a case-by-case
approach that sometimes allows for the discovery and limited
admissibility of a plaintiff’s sexual conduct, which puts them in
some “tension” with section 1106 (People v. Rioz (1984) 161
Cal.App.3d 905, 916-917 (Rioz); People v. Chandler (1997) 56
Cal.App.4th 703, 707-708 (Chandler)). Courts have tried to
minimize this tension by construing “good cause” under Code of
Civil Procedure section 2017.220 narrowly and by applying more
scrutiny to the section 352 analysis under section 783 (as well as
by highlighting the need for limiting instructions when evidence
is admitted solely for impeachment purposes under section 783).
(Vinson, supra, 43 Cal.3d at pp. 843-844 [“good cause” construed
strictly to require “specific facts justifying inquiry”]; Barrenda L.
v. Superior Court (1998) 65 Cal.App.4th 794, 801 [“‘good cause’”
requires more than “[t]he mere fact that a plaintiff has initiated
an action seeking damages for extreme mental and emotional
distress”]; Mendez v. Superior Court (1988) 206 Cal.App.3d 557,
572-573 [same], overruled in part by Williams v. Superior Court
(2017) 3 Cal.5th 531; Knoettgen, supra, 224 Cal.App.3d at pp. 14-
15 [courts must be “vigilant” when allowing discovery of prior
sexual abuse]; Chandler, at p. 708 [courts should “narrowly
14
exercis[e]” their discretion under section 783]; Rioz, at pp. 918-
919 [noting that “[g]reat care must be taken” to ensure section
783 does not “become a ‘back door’ for admitting otherwise
inadmissible evidence”]). That tension is especially pronounced
in cases like this one, where a plaintiff seeking to recover
emotional distress damages will typically need to testify to
establish that the defendant’s conduct has inflicted emotional
distress, and this testimony will make evidence of emotional
distress involuntarily inflicted by others through sexual abuse
relevant to impeach her testimony. In such cases, the very same
evidence section 1106 categorically excludes becomes
admissible—subject to balancing under section 352—under
section 783 to impeach.
Despite the consequences and challenges that accompany
section 1106, our Legislature has made its intent clear and we
defer to that intent by holding that evidence of a plaintiff’s sexual
conduct—voluntary or involuntary—may not be admitted under
section 1106 under any circumstances.
The District resists this conclusion with two arguments.
First, relying on the facts in Knoettgen, supra, 224 Cal.App.3d 11,
the District has argued that section 1106’s bar only applies when
the involuntary sexual conduct inflicted upon the plaintiff occurs
before the molestation underlying the plaintiff’s lawsuit. But
Knoettgen’s interpretation of section 1106 is not tied to the
temporal order of the sexual abuse suffered by a plaintiff, and we
perceive no reason why it would be—the invasion of the plaintiff’s
privacy interests through the potential airing of the sexual abuse
inflicted by others is the same no matter when it was inflicted.
Second, the District has argued that its questioning of plaintiff
regarding the 2013 molestation will be minimal, implicitly
15
suggesting that there is a “minimal questioning” exception to
section 1106. There is not.
For these reasons, we reject the District’s argument that
the 2013 molestation should have been admitted for all purposes.
B. Section 783
As alluded to above, section 783 authorizes a trial court to
admit “evidence of sexual conduct of the plaintiff” “to attack [the]
credibility of the plaintiff” if the (1) court adheres to specific
procedural requirements, which are that (a) the defendant files a
written motion that is “accompanied by an affidavit” making an
“offer of proof” (§ 783, subds. (a) & (b)), (b) if the offer of proof is
“sufficient,” the court holds a “hearing out of the presence of the
jury” (id., subd. (c)), and (2) “the court finds that evidence
proposed to be offered . . . is relevant [to impeach the plaintiff],
and is not inadmissible pursuant to [s]ection 352” (id., subd. (d)).
Also as noted above, section 783 is an express exception to section
1106. (§ 1106, subd. (e).) Although we review questions of
statutory construction de novo (Kirby, supra, 53 Cal.4th at p.
1250), we review a trial court’s balancing of considerations under
section 352 for an abuse of discretion. (Chandler, supra, 56
Cal.App.4th at p. 711 [“A trial court’s ruling on the admissibility
of prior sexual conduct will be overturned on appeal only if
appellant can show an abuse of discretion”].)
Although the trial court erred in concluding that section
783 is inapplicable to involuntary sexual conduct, that error is of
no moment because we are tasked with reviewing the court’s
ruling—not the rationale it used to get there. (Zapien, supra, 4
Cal.4th at p. 976.) As noted above, we have construed its
ambiguous ruling as admitting evidence of the 2013 molestation
solely for purposes of impeaching the plaintiff. Further, the trial
16
court adhered to all but one of the specific procedural
requirements and the balancing requirements of section 783.
Although trial court did not insist that the District comply with
section 783’s requirement that that a motion be accompanied by
an affidavit including an offer of proof (§ 783, subd. (b)), this
requirement would have been pointless in this case because the
court invited the District to file the motion after hearing from the
parties the undisputed fact of plaintiff’s victimization in 2013.
There is nothing to indicate that either party was denied its
statutory right to question the plaintiff at the hearing (§ 783,
subd. (c)); because this right exists whether a hearing is
conducted under section 782 or 783, the parties were aware of
this right when the court erroneously invoked section 782, yet
opted not to question plaintiff. Thus, whether the trial court’s
ruling in this case was incorrect turns on whether the court’s
section 352 analysis was an abuse of discretion.
It was not, although it is admittedly a close question.
The 2013 molestation has substantial probative value in
impeaching plaintiff’s likely attribution of all of her emotional
distress to Baldenebro’s (and, by extension, the District’s)
conduct. Based on facts disclosed in discovery that was obtained
without objection, the court found that the 2013 molestation
involved similar conduct to the molestation by Baldenebro and
thus inflicted similar “emotional and psychological trauma” upon
plaintiff and thus “undoubtedly added to her damages,” and this
finding is supported by the evidence that plaintiff sought out
“medical” and psychological treatment for that trauma in 2016.
The court’s finding that admitting evidence of the 2013
molestation was “not substantially outweighed by the probability
that its admission will necessitate undue consumption of time,
17
create[] substantial danger of undue prejudice, confuse the
issues, or mislead the jury” is also supported by the record.
Although the District’s questioning of plaintiff or introduction of
records would need to elicit sufficient evidence of the 2013
molestation’s general character and gravity to be useful for
impeachment purposes, the court had a basis for finding that the
questioning of plaintiff could be “minimally invasive” in light of
the court’s careful regulation of the content and form of evidence
presented regarding the 2013 molestation, the time needed to
admit evidence of the 2013 molestation would be relatively
minimal, and a limiting instruction could minimize the dangers
of confusing or misleading the jury as well as blunt the undue
prejudice flowing from its introduction. The balance is assuredly
a hard one. As our Supreme Court noted in a related (albeit not
identical context), “[w]here the [plaintiff] has attempted to link
the defendant to . . . evidence of sexual activity on the
complainant’s part, ‘the defendant should unquestionably have
the opportunity to offer alternative explanations for that
evidence, even though it necessarily depends on evidence of other
sexual conduct.’” (Fontana, supra, 49 Cal.4th at p. 363.) This
principle will not always justify admitting evidence for
impeachment under section 783, but it was not an abuse of
discretion to conclude that it does in this case where denying the
District the ability to impeach plaintiff’s attribution of all of her
emotional distress to Baldenebro, should she do so, could render
the District liable for trauma inflicted by the more recent 2013
molestation for which it could argue it is not responsible.
At oral argument, plaintiff suggested that section 783 is
categorically unavailable when the proposed impeachment
regards the plaintiff’s consent or the absence of injury prohibited
18
as substantive evidence under section 1106. Although this would
be one way to try to harmonize the inherent tension between
sections 1106 and 783, it is not one supported by the plain text of
either statuite: Section 1106 expressly names section 783 as an
exception to its prohibitions, and section 783 looks to a case-by-
case balancing of considerations under section 352.
For these reasons, we conclude that the trial court did not
abuse its discretion in admitting the 2013 molestation for
purposes of impeachment.
II. Remedy
At the time that we initially denied plaintiff’s writ petition,
the trial had yet to begin and, in light of our analysis, the proper
remedy was to deny the petition.
Since then, however, the parties gave their opening
statements and both parties referred to the 2013 molestation.
The District did not limit its discussion of the 2013 molestation
strictly to impeaching plaintiff’s testimony. We do not know
whether the jury that was selected is still intact or has been
released in light of the delay associated with appellate review.
To the extent the prior jury was discharged and a new jury must
be selected, any danger arising from statements discussing the
2013 molestation for purposes beyond impeachment is gone. To
the extent the prior jury remains intact upon remand, the trial
court is in the best position to assess the impact of the parties’
mention of the 2013 molestation on any still constituted jury.
Accordingly, we deny the writ with instructions.
19
DISPOSITION
Plaintiff’s petition for a writ of mandate is denied. Upon
remand, and if the previously selected jury is still constituted, the
trial court is to assess whether any prejudice resulted from the
District’s discussion of the 2013 molestation during opening
statement for purposes beyond impeachment, and to take
appropriate action, if necessary, to eliminate that prejudice. The
stay of the trial proceedings is hereby dissolved.
CERTIFIED FOR PUBLICATION.
______________________, J.
HOFFSTADT
We concur:
_________________________, P. J.
LUI
_________________________, J.
CHAVEZ
20